Is It Time For Jeremy Clarkson To Pack Up His Gear?

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Over 900,000 people think not, having signed an online petition to reinstate Jeremy Clarkson to Top Gear, and this number is growing.

Jeremy Clarkson has been suspended for allegedly punching producer Oisin Tymon. Here comes yet another controversial issue with Jeremy Clarkson at its centre. Clarkson is already on a final written warning for using racist language whilst filming Top Gear a few years ago, and then there was the Falklands number plate incident last year.

The investigation into this most recent allegation is currently underway, headed by Ken McQuarrie, and Clarkson is due to provide his account to the BBC this week. If Clarkson is found guilty, what will the BBC do next?

For a minute, let’s put aside the public opinion, the media scrutiny and the popularity and financial value to the BBC of Top Gear and Clarkson, and take it back to basic employment law.

If those of you with businesses who have staff handbooks in place check your disciplinary policy or disciplinary rules, I am confident that physical violence will be listed as an example of behaviour which constitutes gross misconduct. I know that it is listed as an example of gross misconduct in the disciplinary rules that we draft for our business clients, and by Acas in their non statutory guide to discipline and grievances at work.

Acts of gross misconduct are acts which are so serious that they justify instant dismissal, often without notice pay.

Now imagine your workplace. Imagine you and your colleague disagree over something. There may be a few verbal exchanges, but then your colleague has had enough of talking it through with you and they decide it is easier and more effective to punch you in the face.

What would you expect to happen? After getting over the initial shock of being punched of course. You would expect that colleague to be immediately removed from the workplace. And so that is what the BBC did; they suspended Clarkson immediately and commenced an investigation into the allegation.

If a disciplinary investigation finds that there is a case to answer, an employee would be presented with the evidence against them and invited to a disciplinary hearing to discuss the allegation. One of the potential (and likely) outcomes to that hearing in a case of physical violence is summary dismissal.

This is where the BBC could fall off track. If Clarkson is found to have punched Tymon, will the BBC be swayed by public opinion, viewing figures and finances, or will they follow the process through to dismissal? There is no doubt that there is a lot at stake for the BBC; the BBC lost 4 million viewers and face a multimillion pound bill as a result of suspending last Sunday’s Top Gear episode. The programme’s estimated global audience is 350 million people, and it typically attracts over 5 million viewers for each show.

And then there is the public pressure, the online petition calling for Clarkson’s reinstatement. Even David Cameron has felt the need to comment. If one of your employees had punched a colleague, and a group of that employee’s friends asked you to keep him employed, would you listen? Would you ask the prime minister for his opinion?

Admittedly, this case is different to a case in your workplace due to the programme’s public platform and high value. But why should it be? At the end of the day, someone may have been punched and employees cannot go around punching colleagues.

And if he is not dismissed, does this give other employees the right to walk around punching each other? One person got away with it, so why shouldn’t others? Does it set a dangerously high threshold for gross misconduct?

How would you feel if you were that employee who had been punched, and your colleague was allowed to return to work? Vulnerable, intimidated, undervalued? You would lose all trust and confidence in your employer and their ability to keep you safe. Cue the claim for constructive unfair dismissal.

If the BBC don’t dismiss Clarkson they will be seen as weak, and it will leave a number of employment issues in its wake. But even if you add up the cost of dealing with these issues, it is likely to be significantly less than what they will lose if they let Clarkson go.

To make things even worse for the BBC, Clarkson’s contract runs out in a month, and so even if he is not dismissed, he could walk away anyway and straight into the hands of other broadcasters, leaving the BBC humiliated and embarrassed.

Of course this is all speculation. The investigation may find that Clarkson did not punch Tymon. But if he did, we will be watching with interest to see whether the BBC will follow the wheels of natural justice, or bow to public pressure and financial statistics.

Are you one of the 900,000 who signed the online petition? Let us know your thoughts by commenting below.

Rhiannon provides legal guidance and advice on a variety of employment issues. She takes an active marketing role within the firm and provides workshops on employment law and legal developments.

Rhiannon has experience working for public and private sector clients on a range of employment issues such as unfair dismissal, discrimination, TUPE and compromise agreements. She has particular expertise in the area of equal pay.